As you might guess, it can be difficult to discuss important legal issues in a column like this; we'd rather personalize the discussion for each of you. However, without that option, we must speak in general terms and, sometimes, that forces us to leave out important specifics.
To get around that problem, we may spend a few columns writing about a topic, hoping that somewhere in one of these columns, there will be something that you will find helpful. We did that with our last topic, No Contest clauses, and we'll do that again with this topic, namely, powers of attorney and how important they can be in an estate plan.
We also use "real life" examples (altered, of course, to preserve privacy) when we feel like someone else's experience may help you now or will illustrate an issue that may become important to you later.
Without wanting to sound too dramatic, we know that the decisions you make as you read columns like this, or as you think about your unique situation, can have serious consequences for you and everyone in your family.
Recently, we met with a family dealing with a terrible, unexpected crisis. A family member had been seriously injured and will likely spend months — possibly years — recovering.
His cognitive abilities have been seriously affected. For the foreseeable future, he will not be able to make any decisions. However, many legal, financial and other decisions must still be made on his behalf and then someone will need to act for him.
If he had a power of attorney before the accident, almost everything that needs to be done for him could be done by whomever he appointed (we call that person an "agent"). A power of attorney is a document which would have allowed him to give his agent the authority to act for him. That person could then do simple things, such as pay bills or deal with his bank, but could also handle more complicated things for him, including paying taxes or selling real estate.
If he had granted such a power of attorney to someone else, that would not mean he would have given up any authority; he could have still handled his own affairs.
But by signing a power of attorney, he would have allowed someone else to step in and help when needed.
Unfortunately, he had not signed a power of attorney and, now it is too late. Because he does not have the capacity to make his own decisions, he also does not have the legal capacity to sign a power of attorney.
As a result, we must now involve the court to have someone appointed as a guardian; in this case, it will be a family member, but it need not be. That appointment will authorize the guardian to handle the same responsibilities that, for the most part, could have been handled with a power of attorney.
However, the process will be much more complicated — and expensive. A guardianship can only be granted by a judge, and the judge will likely rely on others, such as a health care provider, a social worker and possibly even another attorney, all of whom are trying to ensure that his interests are protected.
By comparison, a power of attorney would have only required his signature. Given the option, he certainly would go back in time and take care of his affairs differently, but of course, he does not have that option.
But you do; hopefully, you can learn from his experience and find someone to help you properly execute a power of attorney and keep your family from going through what his family is now forced to endure.
We discuss these, and other, estate planning matters in our no-cost seminars. Our next seminar is at 3 p.m. Wednesday, Oct. 16. There will be limited seating (no more than eight), so that we can focus on the specific questions of a small group. If you are interested in attending, or if you have any questions about this article or topics you would like us to address in future columns, send an e-mail to admin@GJlawyer.com or call 970-270-1213.
Brad Wright's business and estate planning practice includes transactional and litigation matters with a special focus on estate planning and business succession. His brother, Steve Wright, has a similar law practice in Idaho Falls, Idaho, and, together, they assist people with all types of estate matters and businesses of all sizes and types with a wide variety of legal issues.
© 2019 Brad R Wright, Steven J Wright